Court File and Parties

COURT FILE NO.: 19-30000744-0000 DATE: 20230113 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King – and – S.J. Defendant

Counsel: James Dunda, for the Crown Peter Connelly, for the Defendant

HEARD: May 9, 10 and 11, 2022

PUBLICATION OF ANY INFORMATION TENDING TO REVEAL THE IDENTITY OF THE COMPLAINANT HEREIN IS PROHIBITED UNDER S. 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons for Sentence

BYRNE J.

Introduction

[1] S.J. was found guilty, after trial, on one global count of sexual assault and one global count of invitation to sexual touching involving his biological daughter, S.J.

[2] The facts underlying those convictions are set out in detail in my written judgment dated July 12, 2022. I do not intend to repeat them now. Suffice it to say that the offender sexually assaulted his daughter approximately 8 times in the family home over a 4-year period from 2007 through 2011, when she was between 11 and 14 years old. The sexual incidents involved the offender touching his daughter’s breasts, buttocks, and vaginal area with his hands, mouth, and erect penis. Most of the touching occurred on top of the victim’s clothing. All of the touching happened in family home after the victim had gone to bed for the night.

Guiding Legal Principles

[3] Our criminal law is a system of values.

[4] In criminal proceedings, sentencing is meant to reflect and reinforce the basic values of our society, contributing to respect for the rule of law and the maintenance of a just, peaceful, and safe society by the imposition of a just sanction.

[5] Any sanction imposed by a court must take into account the fundamental purpose and objectives of sentencing set out in s. 718 of the Criminal Code, as well as the principles set out in s. 718.2 of the Criminal Code.

[6] The objectives of sentencing include denunciation, deterrence, rehabilitation, the separation of offenders from society where necessary, and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. The amount of emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[7] In this case, the victim was the offender’s biological daughter. She was a child between the ages of 11–14 at the time of these sexual assaults. The law is clear: in cases where a child has been sexually abused, particularly by someone in a position of trust, the sentencing principles of general deterrence and denunciation must dominate. This is one of those cases: see R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309.

[8] Ultimately, whatever sentence is imposed, it must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. There is no “one size fits all” formula. Sentencing continues to be one of the most difficult tasks for judges. This case is no exception.

Positions of Counsel

[9] Crown counsel takes the position that, given the seriousness of the offences, a period of four years of incarceration is warranted.

[10] Defence counsel agrees that a period of incarceration is warranted but takes the position that a period of two to three years of incarceration is appropriate and justified in the circumstances.

[11] Both counsel submitted caselaw in support of their respective positions, which I have thoroughly reviewed.

Victim Input

[12] There is no victim impact statement from S.J. She has chosen not to submit one to the court. This is not surprising. Victim impact statements can be very triggering. Given the nature of the offences, it is understandable that the victim would be reluctant to relive the events. Notwithstanding her choice not to provide a statement, I have the benefit of S.J.’s trial testimony, from which I find she did suffer harm as result of the offender’s conduct — a type of harm that will likely deeply impact her view of self and all of her relationships for the rest of her life.

The Offender

[13] S.J. comes before this court as a 65-year-old first-time offender. He is originally from Sri Lanka. He moved to Canada over two decades ago to escape the civil war in his home country. The offender had three children from his first marriage. His wife from his first marriage died in 1986 and one of his children from that marriage has also since passed away. The offender married for a second time and the victim in this matter is the oldest of his two children from that union.

[14] Since coming to Canada, the offender has been a contributing member of society in that he has always maintained full-time employment. Most recently, he was employed as a long-haul truck driver. After being arrested for the offences before this court, the offender was released on bail with terms that allowed him to continue his employment. That situation changed in 2020 when the offender breached his bail conditions. Although he was released again, the bail terms changed, and the offender was subject to a house arrest condition which resulted in his inability to continue his work as a long-haul trucker. More recently, the offender has been arrested for another breach and he now remains in custody.

[15] Despite being unemployed and incarcerated, I understand that the offender continues to financially support, to the degree he can, his two youngest children, one of which is the victim.

[16] I was also told that the offender is diabetic and suffers from high blood pressure. Despite these concerns, I was also told that these conditions have been adequately managed by health care professionals at the facility where he is incarcerated.

Analysis

[17] An offender’s moral blameworthiness is amplified when they abuse their position of trust over a victim. In this case, the offender was the biological father of the victim and they lived together in the family home. As a parent, his responsibility to the victim was at the highest end of the trust spectrum. The fact that he breached this responsibility consistently and persistently over several years is significantly aggravating. In this case, while the assaults did not involve penetration, the impact and harm caused to the victim is no less significant. The physical acts were no less pronounced and, when considered cumulatively, they are overwhelmingly aggravating.

[18] Further aggravating is the vulnerability of the victim during this time frame. In this case, the offender was her father, and she was between 11 and 14 years of age at the time of the assaults. It is hard to imagine a child being in a more vulnerable position. She was in her formative years. She was growing and developing as a person. She was just starting to figure out who she was, sexually and otherwise. Although it may be stating the obvious, as a child, she was completely dependent on her father for the basics, like food, shelter, and clothing. She had nowhere to turn and no escape. She did take steps to protect herself against him, like wrapping herself up in bedding or sleeping with her back to the wall. It was not until the family moved into a new residence, where she had a bedroom of her own with a lock on the door, that the assaults came to an end.

Sentence

[19] After considering the caselaw, the aggravating and mitigating circumstances, the submissions of counsel, and the unique facts that attach to this case, I am of the view that a lengthier period of incarceration is appropriate in this case.

[20] Accordingly, on count one, sexual assault, the offender will be sentenced to four years of imprisonment. On count two, invitation to sexual touching, the sentence will be two years’ imprisonment, to be served concurrently.

[21] To be clear the four-year sentence does not include or take into account any of the time the offender has spent in custody on the outstanding breach charges.

[22] You will also be subject to the following ancillary orders.

[23] Pursuant to s. 109 of the Criminal Code, you are not permitted to be in possession of any firearms, weapons or ammunition as defined by the Criminal Code for ten years.

[24] Pursuant to s. 487.051 of the Criminal Code, you will forthwith provide a sample of your DNA to be submitted to the National DNA databank.

[25] Pursuant s. 743.21 of the Criminal Code, you are to have no contact or communication directly or indirectly with the victim during your period of incarceration except with her written revocable consent.

[26] Finally, you must comply with all reporting requirements under the Sexual Offender Information Registration Act (otherwise known as SOIRA) for a period of 20 years.

Byrne J. Released: January 13, 2023